This is the first in a somewhat random series of posts about constitutional insights provided by people other than the Founding Fathers. For all the constitutional rhetoric we get out of Tea Party groups about the meaning and purpose of the Constitution, they, by and large, ignore everything that’s a part of our constitutional tradition post-1787, because it’s irrelevant in their mind to the holy grail of Constitutional interpretation: Original intent, . . . or original meaning, . . . or original understanding, . . . or, to put it more inclusively and ambiguously, originalism.
I’m a believer in adherence to original meaning where it can be clearly ascertained against alternatives, but disagree with a number of my friends who discount America’s subsequent-to-the-Founding constitutional history. It’s sad that very sincere lovers of our Constitution often know very little about the men and women who have shaped the Constitution and our perception of it during the last 225 years. It is, at the very least, unfortunate, because it prevents its disciples from being exposed to most of America’s constitutional tradition and some of the really important insights regarding what the Constitution is and what it does.
And so, with that disclaimer and without any further ado, I present Volume 1 in my new series, Lessons in American Constitutional History, Post-1787, where I introduce my founding constitutionalist friends to Justice Robert H. Jackson, a Roosevelt (gasp! — yes, that Roosevelt) appointee to the Supreme Court, one of the chief prosecutors at the Nuremberg War Crimes Tribunal, and the last person appointed to the United States Supreme Court who did not graduate from law school (emphasis in the quotations below is all mine):
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From West Virginia State Board of Education v. Barnett, a case involving a challenge to mandatory reading of the pledge of allegiance in public school:
The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
Youngstown Sheet & Tube Co. v. Sawyer, a case involving President Truman’s seizure of steel mills when faced with the likelihood of a steel union’s strike during the Korean War — ironically pitting my favorite Supreme Court Justice against one of my very favorite Presidents):
The actual art of governing under out Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
3. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
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And finally, from United States v. Korematsu, a case where the Court was asked to evaluate the constitutionality of a military order interning Americans of Japanese ancestry at the outset of U.S. involvement in World War II:
In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.
